19th February 2016: ELECTION PETITIONS: Summary of Proceedings by the Special Rapporter

Day 7 –19TH February 2016, 9.00 am – Constitutional Court of Seychelles

In the matter of Wavel John Charles Ramkalawan v The Electoral Commission, James Alix Michel and the Attorney-General

The Constitutional Court is made up of the Honourable Chief Justice Twomey, Honourable Judge McKee and Honourable Judge Akiiki-Kiiza. Mr. Wavel Ramkalawan (Petitioner) was represented by Mr. Bernard Georges and Mrs Annette Georges. The Electoral Commission (First Respondent) was represented by Miss Samantha Aglae, Mr James Michel (Second Respondent) was represented by Mr Basil Hoareau together with Mrs Laura Valabhji and Honourable Attorney-General together Mr Ananth Subramanian for the Attorney-General (Third Respondent).

Mr Bernard Georges made an Application to have the Electoral Commission called on personal answers the purpose being to question the Commission on matters relating to the tallying of votes that need further clarification.

Ms Samantha Aglae for the Electoral Commission argued that Wavel Ramkalawan’s requirement for clarifications relating to the tallying of votes is not sufficient grounds to allow the Application. The Attorney General argued that in fact what Wavel Ramkalawan is seeking is further and better particulars and the purpose of personal answers is to get the party to make admissions not to seek further particulars or clarifications. He was of the view therefore that in the circumstances sufficient grounds have not been shown to allow the Application.

Ms Aglae then advised the Court that the Electoral Commission would be calling Electoral Officers on oath, which persons could answer the queries of Mr Wavel Ramkalawan and therefore in the circumstances Mr Bernard Georges has decided to withdraw his Application for obtaining Personal Answers.

Mr Bernard Georges then requested for the voters registers of the Inner Islands to be handed over to Court to ensure that there is no tampering with the documents. The Court made an order that the documents be brought to Court and shall be kept locked in court custody until the matter is heard.

All parties made their opening remarks in writing and centred on the burden and standard of proof required to prove the alleged irregularities. Mr Bernard Georges argued that the burden of proof would start with the Petitioner and then shift to the Respondents’ once the Petitioner has raised sufficient evidence as to the alleged irregularities. He stated that the standard of proof would be on a balance of probabilities.

Representatives of the Respondents all submitted that the burden of proof was on the Petitioner and that the standard must be higher and that of beyond a reasonable doubt. The issue as to the burden and standard of proof shall be canvassed again at the closing of the hearing.

The hearing of the Petition commenced with Mr Wavel Ramkalawan being called as the first witness.

Mr Wavel Ramkalawan gave evidence that he had contested all but one of the Presidential elections and that he had also contested a number of National Assembly elections. He stated that he had been elected to the National Assembly for the districts of St Louis and Anse Etoile and served for nearly 20 years on the National Assembly. He also stood as the Leader of Opposition on the National Assembly from 1998 to 2011. Mr Wavel Ramkalawan explained that over the years his relationship with the Electoral Commission had been good and the Seychelles National Party (‘SNP’) had been a major player in the reform debates. He stated that he was overall happy with the recommendations for reform and that he always had an open dialog approach with the Commissioners.

Mr Wavel Ramkalawan then moved on to the 2015 Presidential Elections whereby the 2nd ballot was held on 18th December 2015 and Mr James Michel was declared the elected President by the Electoral Commission and the declaration was published in gazette, a copy of which was produced and exhibited.

Mr Wavel Ramkalawan explained that he was not satisfied that he lost the election and went on to state that the difference between himself and Mr James Michel was 193 votes. He went on to explain that he is seeking a declaration that election is void and for a recount of the ballot papers. He was not satisfied that the Election Commission acted in accordance with law in all respects and further that he was not satisfied as to the quality of the ink and UV spray used.

Mr Bernard Georges then asked Mr Wavel Ramkalawan about the voting at the special polling stations. He stated that a tally was made before the main Election Day of all votes received from all special stations and that the number of votes did not tally to the list that had been made.

Before voting on the main polling day commences, the names of all persons who have voted at special stations are read out and struck off the register to ensure no double voting. A list is then given to each polling agent and from that list, the polling agent crosses out names on their register. There is a special station on Mahe for persons from Praslin and Inner Islands who are on Mahe and want to vote on the main polling day. This special station is open until midday, however Mr Wavel Ramkalawan stated that there is problems with this because polling on Praslin and Mahe are open at same time and there is no way to control a person from voting on Mahe and then travelling to Praslin to vote.

A voters’ register for the special station of the Inner islands was produced. According to Mr Wavel Ramkalawan there appears on this register, two names of persons who had voted on La Digue but also in the special station at the National Library.  He stated that on Wednesday 17th February 2016, Annette Georges and I went to the Electoral Office and were handed the occurrence books for Silhouette and La Digue along with three registers of voters of the Inner Islands. Mr Wavel Ramkalawan testified that as he and Mrs Georges went through the documents and they found that some names on the Mahe special station had not been transferred to the La Digue register and therefore had not been crossed out, there were instances of a differences in names, a discrepancy in the votes numbers (185 at the special station and 184 according to the La Digue register) and discrepancies between the registers. He further stated that they had also compared the voter register for the Inner Islands to the national tally of votes cast for the inner islands and they found that there was 53 more votes cast than people listed as having voted.

The national tally document was produced and marked as an item that demonstrated that 1788 votes were cast on the Inner Islands. Mr Wavel Ramkalawan stated that he was not satisfied by the documents as the votes cast and list of voters who cast votes do not tally and there were more ballots than people therefore there is a problem. He further stated that he has not been able to carry out the same exercise in other constituencies, as he does not have the other voting registers.

The Court adjourned briefly and upon resuming, Mr Wavel Ramkalawan talked about further discrepancies that he had discovered upon analysing the registers. Mr Wavel Ramkalawan stated that there were five voters, whose votes had been recorded on Mahe and whose names had been marked on the 1st register but whose names where not transferred to the La Digue register and subsequently whose names did not appear on the reconciled register.  He also observed two other names that where crossed in on the La Digue register but not on first register of the special station and subsequently crossed on reconciled register. The names of the five who had cast on Mahe where not on the list of names that had accompanied the envelopes on la Digue and therefore appear as if they have not voted. Therefore he is not satisfied with the tallying on votes and he questions as to whether there may be other discrepancies in the other constituencies. Mr Bernard Georges then took Mr Wavel Ramkalawan through the voting registers and pointed out names that appear on one register but not on the other.

Mr Wavel Ramkalawan sought to produce a summary of his findings to the Court but the Respondents objected to its production and the Court decided not to allow its production.

Mr Wavel Ramkalawan further testified that he was not happy with the way that the elderly voters have exercised their right to vote and that it is an issue he had taken up with observers and also the Electoral Commission.  He stated that the Election Observers have taken note of this and in a number of their final reports they have addressed this issue.

The Commonwealth report following the 2001 Presidential Elections was produced marked and exhibited. The report raised concerns in regards to the secrecy of votes of the elderly and the disabled. Mr Wavel Ramkalawan stated that there had been a slight improvement in situation in the last election, due to the reform that reduced the number of times that a person could accompany voters but in general the situation was still bad. He then covered the area of the report which covered the assisted voting of elderly although they are able and stated that this was still a problem as party activists drag elderly on occasion from their homes to vote fo PartiLepep. He stated that his party activists do not do this and in fact encourage supporters not to bring elderly.

Mr Wavel Ramkalawan explained that there is a special polling station at the North East Point home for the elderly for those who live at the home and also those who are in the hospital during the time of the election. He stated that Ms Anne Desire is in charge of the home, that she is a keen PartiLepep activist and sits on committee of PartiLepep at Anse Etoile.

Mr Wavel Ramkalawan stated that he knew Mr Dolor Ernesta and that he is a member of the central committee of PartiLepep. He explained to the Court that he had seen a video that had been posted on Facebook of Mr Ernesta sitting in his car with an elderly lady. In the video a gentleman known as Mr Camille can be seen shouting at Mr Ernesta and accusing him of forcing an elderly lady into his car to take her to the polling station. In the video the gentleman accuses Mr Ernesta of being power hungry. The Respondents’ object to the production of the video but as Mr Wavel Ramkalawan is the maker of the copy of the video, the Court has decided to allow its production.

The case was adjourned to 1345.

 

Mr Wavel Ramkalawan stated that he arrived to the North East Point special polling station on the 16th December 2015 at the same time as Mr James Michel but remained outside. Whilst he was there he was informed of a complaint by Mr Hercule Ameddy and as a consequence he informed him that he had two options and those were that he could go to the hospital and get his ID card or that he could still vote even without an ID card and that he did then go on to vote.

 

On the 18th December 2015 Mr Wavel Ramkalawan stated that he had received various reports and specified that he had received reports from his polling agents at Grand Anse and Plaisance and as such he felt that there had been irregularities in the way the elections had gone on. He also stated that he personally investigated what he believed to be strange occurrences at the Oceangate House which houses the Agency of Social Protection following photos on Facebook showing long queues outside Oceangate House. He believed that one queue had to do with ID cards and the other with the social welfare agency and giving out social assistance. He had informed Mr Hendricks Gappy and reported that he thought that this was a form of bribery. Following this Mr Hendricks Gappy instructed a member of the Indian Ocean Commission observer group to investigate what was happening.

 

He further pointed to a report that was made by the Central Bank of Seychelles that was published on government expenses where it showed that a sum of approximately 82 million rupees was paid out in December 2016 compared to 49 million rupees in the previous months.

 

Mr Wavel Ramkalawan produced the Shared Code of Ethical Conduct by Political Parties, Candidates and other stakeholders that was agreed upon by all stakeholders and signed by Mr Nicholas Prea signed on behalf of the SNP. He pointed to the paragraph stating that DA officers shall be closed on the day of the election and referendum.

 

He then produced a letter dated the 16th December 2015 which informed Seychellois employees of the Indian Ocean Tuna (IOT) that they would be receiving a 13th month salary. He said he believed there were 700 Seychellois employees at IOT. He was surprised because the IOT was a private company and the government was a minority shareholder and further made reference to the Circular No. 3 of 2015 that was issued from the Office of the President that the 13th month salary related only to budget dependent organisations. MrWavelRamkalawan said that the IOT was not budget dependent organisation and therefore the government was not obligated to pay the 13th month salary to the workers of the IOT.

 

Mr Wavel Ramkalawan also produced the Seychelles Nation dated on the 16th December 2015 that featured an article on the front page of the newspaper on Etihad Airways and which had also reproduced a statement made by the President who was the candidate of the PartiLepep. He said that Mr James Michel had said that he had made these statements in the build of the election and not on the day of the elections. After this was written in the newspaper Mr James Michel stated to the effect that he had nothing to do with Etihad Airways but this was something for them to decide. Mr James Michel then dissociated himself with the article in the Seychelles Nation.

 

MrWavelRamkalawan further stated that one MrDavid Savy and Minister Joel Morgan had also made statements with regards to the issue of Etihad as the pullout of Etihad Airways had clearly become a political issue. MrWavelRamkalawan said that he had read the comments of Mr David Savy and taken photographs of the comments on Facebook which featured in the group, “Dan Lari Bazaar” which he had accessed using an anonymous ID. This comment was read out in Court.

 

Mr Wavel Ramkalawan moved on to his knowledge of one Flossel Francois from Takamaka who was a staunch supporter of the SNP. Following a stabbing he had been sentenced to life imprisonment but was no longer in prison as he was released on the 16th December 2015. Mr Wavel Ramkalawan came to know of this because following his release he visited Mr Wavel Ramkalawan. Mr Wavel Ramkalawan was also aware that Mr Francois’s concubine was a supporter of the Lalyans Seselwa but leading up to the second ballot she spoke in favour of Mr James Michel that surprised Mr Wavel Ramkalawan. He further responded to a question from the Court that Mr Francois does suffer from a heart condition.

 

Mr Wave lRamkalawan spoke of his attempts to get one Mr Duval a Presidential pardon in view that he was also serving a life sentence in view that he had been terminally ill from cancer but this had not been granted. Mr Wavel Ramkalawan said that he knew of two other Presidential pardons that were granted to Paul Micock and Mr Dodin.

 

Following this Mr Wavel Ramkalawan spoke of his knowledge of the Speaker of the National Assembly, Mr Patrick Herminie, who is a proportionally-elected member of the PartiLepep. Mr Wavel Ramkalawan recounts having spoken to Mr Hendricks Gappy following a complaint he had received about an interview given on the SBC on the 1230 news on the 15th December 2015. He requested that the interview was not aired on the main news at 8 pm as he was concerned because the Speaker was a member of the PartiLepep and it was cooling off period, that is 24 hours, prior to the first day of voting and therefore in contravention of the Code. He said he contacted Mr Onezime  and following that Mr Hendricks Gappy who asked to see the interview and then would take a decision. He stated that as a result of his complaint it did not feature on the main 8 pm news however it was uploaded on to the ‘Dan Lari Bazaar’ group on Facebook and which video he produced to the Court.

 

The Court adjourned briefly and when it reconvened, Mr Wavel Ramkalawan returned to the point of the interview by the Speaker and said the English interview at 7 pm was aired but the one in Creole was not aired on the 8pm news. Mr Wavel Ramkalawan contacted Mr Onezime to tell him that the interview appeared on the Facebook page and he was satisfied with the level of concern of Mr Onezime as to how this had managed to get out of the SBC.

 

He then gave evidence that he knew one Mr James Lesperance who had a front row seat at the inauguration of Mr James Michel. He went on to say that Mr James Lesperance features in the photographs in a number of newspapers of a group of businessmen coming from the State House on the first day of the second ballot. He said that his name also came up in the issue of buying ID cards. Mr Wavel Ramkalawan said he communicated with him on that issue and following the conversation contacted Mr Quatre, the Commissioner of Police, and the police took up the matter and the ID cards were returned.

 

Mr Wavel Ramkalawan recounted that on the evening of the second ballot during the count his counting agents would call him to give him the results and said that one Danny Sopha at Anse Aux Pins called him because he was experiencing problems. He stated that there were discrepancies in at least three of the polling stations: Anse Aux Pins, Cascade and Glacis. He said he did not accept the explanation of the Electoral Commission that the irregularities were all due to human error.

 

He then moved on to the state that he knew Seychelles Peoples’ Defence Forces, personnel including Chief Military Adviser Clifford Roseline, Chaplain of the SPDF, Louis Agathine, and Commander of the Coast Guard, Simon Dine and that he had heard an audio recording of the three persons in a meeting where they are speaking to the soldiers of the SPDF. Objections were raised to its production and it was further stated by Mr Hoareau, Mrs Aglae and the Attorney General that the version they were given was barely audible so could not hear any of the voices properly. Mr  Bernard Georges said he would make audible copies available to the lawyers of the other parties.

 

Mr Wavel Ramkalawan then spoke of his knowledge of a Mrs Botsoie who he said is an activist of PartiLepep and Head Teacher of La Rosiere School. He said he had a video recording of Mrs Botsoie giving a lecture to the teachers of La Rosiere School during working hours.

 

The evidence led by Mr Wavel Ramkalawan ended there for today and issues were dealt with in regards to videos and audio recordings that Mr Wavel Ramkalawan produced and in the interest of the public these videos and audio recording, if allowed into evidence, will be played in open Court on Tuesday and Wednesday at 9 am.

 

It was also ordered that all remaining voters’ registers should be handed over by the Electoral Commissioner to the Court for safekeeping.

 

Report compiled by Special Rapporteur